Circuit Rule 22-2: Direct Criminal Appeals, First Petitions, and Stays of Execution: Capital Cases
Circuit Rules and General Orders of the Ninth Circuit — Title VI. Habeas Corpus; Proceedings in Forma Pauperis
PETITIONS, AND STAYS OF EXECUTION: CAPITAL CASES
(a) Assignment. In direct criminal appeals and section 2241, section 2254, and section 2255 appeals which involve judgments of death and finally dispose of the case, the Clerk will assign the appeal to a death penalty panel composed of active judges and senior judges willing to serve on death penalty panels. However, when an execution is scheduled and no stay is in place, the Clerk may select a panel to hear the appeal and any emergency motion whenever in the Clerk’s discretion it would be prudent to do so. (Rev. 12/1/09; 12/1/18)
(b) Related Civil Proceedings. The Court may apply the provisions of Circuit Rule 22 to any related civil proceedings challenging an execution as being in violation of federal law, including proceedings filed by the prisoner or someone else on his or her behalf.
(c) Duties. Once a case is assigned to a death penalty panel, the panel will handle all matters pertaining to the case, including motions for leave to file a second or successive petition or motion, appeals from authorized second or successive petitions or motions, any related civil proceedings, and remands from the Supreme Court of the United States. When a case is pending before a death penalty en banc court, any additional applications for relief pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event the additional application will be assigned to the en banc court. The determination as to whether the case is assigned to the panel or the en banc court is made by the Chief Judge in consultation with the concerned panel and the en banc court. (Rev. 12/1/09)
(d) The En Banc Court. The Clerk shall include in the pool of the names of all active judges and the names of those eligible senior judges willing to serve on the en banc court. An eligible senior judge is one who sat on the panel whose decision is subject to review. Judges shall be assigned by random drawing from the pool, and in accordance with Circuit Rule 35-3. Review by the en banc court may include not only orders granting or denying applications for a certificate of appealability and motions to stay or vacate a stay of execution, but may extend to all other issues on appeal.
(e) Stays of Execution. Counsel shall communicate with the Clerk of this Court by telephone or email as soon as it becomes evident that emergency relief will be sought from this Court. Any motion for a stay of execution filed before a case has been assigned to a death penalty panel will be presented for decision to a motions panel. Once a death penalty panel has been assigned, that panel then must decide all subsequent matters (unless the case is then before the en banc court).
Any motion for a stay of execution shall be filed electronically and the Clerk will immediately forward the motion to the panel. If an execution is imminent and the death penalty panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote, the panel may vacate such a stay of execution. A motion for stay of execution shall state whether relief was sought in the district court and, if so, whether all grounds advanced in support thereof in the court of appeals were submitted to the district court and if not, why the matter should not be remanded to the district court or relief denied for that reason. If a majority of the panel votes to deny the stay, it shall enter an order to that effect and, unless impracticable, state the issues presented and the reasons for the denial. If no execution date is set, the ordinary rules for obtaining en banc review of a three-judge panel decision shall apply on a first petition or motion.
When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to FRAP 41(b), but any such stay is subject to the limits set forth in FRAP 41(d). If the panel affirms the denial of a first section 2254 petition or section 2255 motion in a capital case and denies a stay of execution, any judge of the Court may request en banc rehearing and issue a temporary stay of execution. (Rev. 12/1/18)